Have you had either of the following exchanges (or something much like them) with a contractor? "That's not what you SAID!" "But you knew what I MEANT!" Or, "You didn't ask me to!" "Well, I shouldn't have to!" Under the best circumstances, these disagreements get worked out when clearer heads and less emotion prevail. However, these are often the precursor to construction lawsuits. This month, let's look a little at the source of these disputes and how you might avoid them.
Before we begin, bear in mind that we're not picking on either party, nor are we taking sides. There are always two sides to every argument, and while it may seem that "the other side" is completely wrong, spending a moment in the other shoes may help you frame your opinion in a more understandable way. At the same time, there are unscrupulous contractors who choose to make your business a game. You should be aware that typically the courts seldom side with the owner or project client, and some contractors bank on that.
Like the camp community, the construction industry has a language all its own. Although the project is happening on your site, it's important to choose the words carefully when discussing a project with a contractor. In fact, in the legal end of construction parlance, certain words have very specific meanings. Consider the similar terms, "supply," "install," and "provide." Insert each one into the blank in the following sentence, "The contractor shall ________ three-tab, composite, architectural shingles." If supply is inserted, the contractor is handing you shingles. Period, end of story. If "install" is used, the contractor is expected to show up with labor and equipment to put a specific type of shingles on the building. Where they come from is not his problem or concern. In the last case, "provide" means that not only is the contractor to obtain the shingles, but he's supposed to put them on the building. The court will apply these definitions when called upon to sort out who wronged whom. Using the right words in the agreement may make all the difference in the world.
Opinion of Scope
This is a common source of arguments with contractors. You want something done that seems pretty straightforward and simple. Let's use our roofing project again. You get some estimates or quotes, and hire someone to "Git ‘r done!" You've used the right word "provide," and they show up with people, equipment, and shingles. Things are going well so far. But twenty minutes later, you walk past and see new shingles being put on top of the old ones. Your intent was for them to remove the old shingles before they install the new ones. When you discuss this with the crew leader, it becomes clear that this wasn't his intent at all. He agrees to do it, but it'll cost more, and they'll probably ruin some of the new shingles that they've already placed.
You're aggravated, but move on. It's a small project, and they're done at the end of the day. Their truck is packed, and all but the foreman is gone. He's looking for pay, and the new shingles look great. But all of the shingles (and roofing nails!) that were ripped off are where they fell from the roof. It's a mote of dangerous construction debris. You say that you're not going to pay until he picks all of that mess up. He says that he's not going to pick it up and haul it to the landfill for free. After another hour of argument and negotiation, you reluctantly agree on a price, but the shingles lay until you've made fifty-seven phone calls to them to come back and clean up. A year later, you're still finding roofing nails all around the building and wondering how something so simple could turn into such a mess. It should be very clear that more planning and carefully laying out the work to be accomplished would have largely avoided much of the problems. When we are arranging scope of work for any project, we try to visualize each and every step from start to finish and make sure that they're included as completely and thoroughly as our documents will allow.
Although the building or property owner is ultimately responsible for ensuring that any work is permitted and code compliant, because the procedures and requirements are so unfamiliar, owners often assume that the contractor will know what paperwork will be required and "take care of things." It's not hard to imagine how and where things can go wrong from here. Angry owners may be inclined to try to hold the contractor responsible for not getting the required inspections and permits, but in the end the way to avoid trouble is to get the permit yourself, or at the very least get and hold the paper permit issued by the governing body. This way, you're able to ask whether and which permits are required before anyone begins work.
Change in Scope
This is a little different, but still similar to the opinion of scope troubles described earlier.
Sometimes, as construction progresses, things begin to take shape that you don't like, or that may be just not what you expected. If you don't have a drawing that clearly shows what you intended, the contractor will see this as a change in scope and whether you think that it's a big deal or not, it will likely bring a change in the cost. Consider, for example, painting your office spaces. You tell the folks offering to do the work that you've picked out the color chip and you want that color on the walls and white on the ceiling.
What could be easier? After he's about halfway through, the consensus is that the color is wrong, and that you'd like it lighter or darker. You can't return the paint that's bought, so there's $150 of materials gone to waste, and a day or two of work. Pretty clearly, he's entitled to more money for six gallons in a different color and the value of the lost time.
But what happens when the work he quoted isn't what he's expecting to do? Say, for example, he's quoted the work without coming to your office, and he doesn't know that there are fifty windows with stained window molding in your office. Masking all that wood work will take time and materials he didn't anticipate. If he arrives and announces that the job isn't what he expected, you should consider negotiating, because it will certainly take more work and time to do the job right. If, however, he waits until the job is done to announce that the bill is higher because of the "change in scope," you have every right to pay him the agreed-upon price and not a dime more.
A Construction Agreement
A construction agreement would have closely defined the project scope, addressing those troubles (and others) in advance. And while not every job is complex enough to require an engineer or an architect's help, you should spend the time and effort necessary to:
No project is completely without ups and downs and problems along the way. But the more thought and time spent preparing before the contractor is on site, the more satisfied (and more rested) you're likely to be when the project is done.
Rick Stryker is a professional engineer with Camp Facilities Consulting, providing study, design, permitting, and construction consultation services to the camp and conference center community. Camp personnel may contact him at 570-296-2765 or by e-mail at firstname.lastname@example.org .
Originally published in the 2006 May/June issue of Camping Magazine.